United States v. Mitchell ( 2002 )

SUMMARY ORDER

UPON DUE CONSIDERATION of this appeal from judgments of the United States District Court for the Southern District of New York (Keenan, J.), it is hereby ORDERED, ADJUDGED AND DECREED that the judgments of the district court are AFFIRMED.

Defendants-appellants Aldo Mitchell and Irving Mason appeal from judgments of conviction entered by the United States District Court for the Southern District of New York (Keenan, J.). Mitchell and Mason were convicted by a jury of various counts arising from their participation in a racketeering enterprise. Their arguments on appeal will be addressed in turn.

I. Evidence of Uncharged Crimes Committed by Mitchell

Mitchell first claims that the district court violated his right to a fair trial by admitting evidence of uncharged crimes through the testimony of Lawrence Camp-field, an accomplice and co-conspirator. We review the district court’s decision to admit this evidence for abuse of discretion. United States v. Arena, 180 F.3d 380, 400 (2d Cir.1999). Other crimes evidence is admissible at trial if it “is relevant to an issue at trial other than the defendant’s character, and if its probative value is not substantially outweighed by the risk of unfair prejudice.” United States v. Livoti, 196 F.3d 322, 326 (2d Cir.1999). “[I]t is within the court’s discretion to admit evidence of prior acts to inform the jury of the background of the conspiracy charged, in order to help explain how the illegal relationship between participants in the crime developed .... ” United States v. Rosa, 11 F.3d 315, 334 (2d Cir.1993).

On review of Campfield’s testimony, we find that it served to inform the jury both of the background to the conspiracy and of the relationship between the participants. Judge Keenan paid close attention to the balance between probative value and prejudice during the government’s direct examination of Campfield, and ended Campfield’s testimony when sufficient background had been established. Tr. 1748. Moreover, the jury was given an appropriate limiting instruction regarding its consideration of the other crimes evidence. See Livoti, 196 F.3d at 326. The district court therefore did not abuse its discretion in admitting Campfield’s testimony.

II. Application of the Sentencing Guidelines in Determining Mitchell’s Offense Level

Mitchell argues that the district court erred in sentencing him based on narcotics-related activity, because the jury did not convict him of a narcotics offense. We find that in determining the base offense level for Mitchell’s RICO conspiracy conviction, the district court properly considered the “relevant conduct” involved in the “underlying racketeering activity.” See U.S.S.G. §§ 1B1.2(b), 2E1.1(a). The- district judge was plainly permitted to find that a preponderance of the evidence showed that Mitchell was involved in a narcotics conspiracy, even though the jury did not convict Mitchell of the narcotics conspiracy described in the indictment. See United States v. Ruggiero, 100 F.3d 284, 291 (2d Cir.1996).

Mitchell next argues that the district court erred in applying a seven-level sentencing enhancement for discharge of a firearm. Mitchell claims that there was insufficient evidence on which the district court could have found the discharge of a firearm reasonably foreseeable to Mitchell. We review the district court’s findings of fact, including determinations of reasonable foreseeability, for clear error. See United States v. Molina, 106 F.3d 1118, 1121 (2d Cir.1997). The record shows that Mitchell participated in a robbery in which he knew that at least one of his accomplices would be armed; given these circumstances, the district court’s factual determination of reasonable foreseeability was not clearly erroneous. Mitchell also claims, relying on United States v. Cordoba-Murgas, 283 F.3d 704 (2d Cir.2000), that the district court should have departed downward from the seven-level enhancement. Cordoba-Murgas authorizes downward departure where there exists an “extraordinary combination of circumstances,” including “an enormous upward adjustment” based on uncharged conduct “where the court has substantial doubts as to the accuracy of the finding.” Id. at 709. These factors are not present in the instant case.

Mitchell finally challenges his sentence on the ground that the firearm enhancement was an element that should have been included in the indictment and charged to the jury pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This argument is squarely foreclosed by our holding in United States v. Norris, 281 F.3d 357, 360-61 (2d Cir.2002).

III. The RICO and RICO Conspiracy Convictions

Defendant Mason was found guilty by the jury of attempted possession with intent to distribute cocaine. Mason claims that there is insufficient evidence to support this jury finding, and that because the attempted possession was one of two predicate racketeering acts on which he was convicted, his RICO and RICO conspiracy convictions must be reversed. Mitchell joins Mason’s argument on this point.

Mason’s challenge must fail if “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also United States v. Payton, 159 F.3d 49, 56 (2d Cir.1998). On review of the record, and for the reasons stated by the district court, we agree that there was ample basis on which a rational trier of fact could have found that Mason attempted to possess or aided and abetted the possession of cocaine. See United States v. Mason, No. S1796CR.126, 2001 WL 69442, at *2-*4 (S.D.N.Y. Jan. 29, 2001).

Mason next argues that even if the attempted possession conviction was valid, there was no horizontal or vertical relation between this act and the second predicate act — the conspiracy to rob and attempted robbery of Eric Connor — sufficient to establish the “pattern of racketeering activity” required by substantive RICO law, see 18 U.S.C. § 1962(e). Horizontal relatedness clearly exists here. As the district court noted below, the Connor robbery involved a plan to rob drug money from a drug dealer, the attempted possession involved a robbery of drugs from a drug dealer, and the participants in both crimes were individuals involved in the broader criminal enterprise. Mason, 2001 WL 69442, at *6 (finding a “similarity of victims, participants, locations, and purposes” such that “a reasonable jury could easily have found that the two racketeering acts were ‘horizontally related.’ ”); see also United States v. Diaz, 176 F.3d 52, 93-94 (2d Cir.1999); United States v. Polanco, 145 F.3d 536, 541-42 (2d Cir.1998). The predicate acts are vertically related as well. See United States v. Minicone, 960 F.2d 1099, 1106 (2d Cir.1992). That the robbery may have been initially proposed because of a personal feud between Camp-field and Connor is of no import; Mason and other members of the enterprise became involved in and were central to the robbery, which was clearly related to the other activities of the enterprise (namely, robbing drug dealers for economic gain).

IV. The Hobbs Act Convictions

Mason further argues that his convictions under the Hobbs Act, 18 U.S.C. § 1951(a), must be reversed because the attempted robbery of Connor could not have affected interstate commerce. Mitchell joins Mason’s argument on this point.

There need be only a de minimis connection to interstate commerce in order to meet the requirement of the Hobbs Act. See, e.g., United States v. Jamison, 299 F.3d 114, 118 (2d Cir.2002); Arena, 180 F.3d at 389-90 (2d Cir.1999). In addition, the effect need only be possible, not actual. United States v. Jones, 30 F.3d 276, 285 (2d Cir.1994). We find that the evidence was sufficient for the jury to find that the attempted robbery had at least the requisite minimal effect on interstate commerce. The record shows that Mason and the criminal enterprise frequently targeted out-of-state drug buyers, Tr. 1000-01, and that Connor traveled weekly to New York from North Carolina to buy drugs, Tr. 1754, 1770. We agree with the district court that the attempted robbery of Con-nor could and probably did discourage interstate travel, see Mason, 2001 WL 69442, at *8, and that this effect is enough to meet the Hobbs Act requirement. See United States v. Farrish, 122 F.3d 146, 149 (2d Cir.1997).

V. The Charles Williams Pre-sentence Report

Mason also argues that the district court improperly denied his motion at trial to admit the pre-sentence report (“PSR”) of Charles Williams, Mason’s co-conspirator in the attempted possession with intent to distribute cocaine. Williams had pled guilty to other charges, and Mason sought to admit the PSR prepared for Williams’ sentencing as an admission by a party-opponent pursuant to Fed.R.Evid. 801(d)(2). Mason claims that the fact that the PSR did not refer to the attempted possession for which Mason was convicted demonstrates that “the crime was wholly unrelated to the enterprise charged herein.”

Reviewing the district court’s decision to exclude evidence for abuse of discretion, United States v. Holmes, 44 F.3d 1150, 1158 (2d Cir.1995), we uphold the exclusion. As the district court explained: “The [attempted possession] incident was not relevant [to Williams’ sentencing] ... and hence was not in the PSR.” Mason, 2001 WL 69442, at *9. And even if the exclusion could be shown to be an abuse of discretion, Mason would not be able to meet the harmless error test — as noted, there was ample evidence before the jury both of Mason’s participation in the attempted possession and of the connection between that predicate act and the criminal conspiracy. See United States v. Jackson, 301 F.3d 59, 64-65 (2d Cir.2002).

VI. Apprendi Challenge to the Consecutive Sentences

Mason and Mitchell both argue that the consecutive sentences imposed by Judge Keenan violate Apprendi. Our case law plainly rejects this claim. See United States v. White, 240 F.3d 127, 135 (2d Cir.2001).

We have considered Mason’s and Mitchell’s additional claims and find them to be without merit. The judgments of the district court are AFFIRMED.